* Pursuant to 5 T H C IR

. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

December 12, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-30248

UNITED STATES of AMERICA,

Plaintiff-Appellee,

v.

SHAWN DECAREAUX KILGARLIN,

Defendant-Appellant.

Appeal from the United States District Court for the

Middle District of Louisiana

No. 3:02-cr-00007

Before BENAVIDES, STEWART, and OWEN, Circuit Judges.

PER CURIAM: *

Appellant, Shawn Decareaux Kilgarlin, appeals her guidelines

sentence imposed based upon convictio n s for mail fraud (18 U.S.C.

§§ 1341 and 1346) and obstruction of justice (18 U.S.C. § 1503).

Also, for the first time on appeal, Appellant argues that the mail

fraud statute was unconstituti onal as applied in her case. After2

reviewing the record, we find no reversible error and affirm.

Appell a nt owned and operated Enviro-Comp Laboratories, Inc.,

a Louisiana corporation that conducted, among other things, drug

testing. Anderson Industrial Scaffolding Services, Inc., (AIS) sent

two employees to Enviro-Comp to have blood drawn for a random drug

test. Appellant did not have the specimens tested but nonetheless

mailed a $17 invoice to AIS. AIS paid the bill my mailing a check

to Enviro-Comp. While Appellant was on release awaiting sentencing

for other convictions, she fabricated several documents and forms

purporting to show that the above-referenced specimens had been

tested and provided these documents to the grand jury. The false

documents provid ed to the grand jury formed the basis of an

obstruction of justice charge in the instant case. As set forth

below, she was also charged with two mail fraud counts.

Appellant was charged by grand jury indictment with (1)

devising a scheme to defraud in violation of the mail fraud statute,

(2) causing AIS to mail a check as paymen t for the purported drug

testing in violation of the mail fraud statute, and (3) obstructing

justice based on fabricating the documents given to the grand jury.

At trial, Appellant called only one witness, who te stified that

Appellant physically retrieved the check from AIS instead of causing

it to be mailed as charged in count two of the indictment. The jury

acquitted Appellant of c ount two and convicted her of the two

remaining counts. Subsequent to the Supreme Court’s decision in1 Appellant asserts that the district court made inadequate

findings to supp ort the enhancement. The district court adopted

the findings in the Presentence Report (PSR), which provided that

"Courtney admitted to Agent McDowell that it was an intentionally

untruthful statement that Ms. Kil garlin picked up a $17 check.”

3 United States v. Booker

, 125 S. Ct. 73 8, 765 (2005), the district

court sentenced Appellant to a guidelines sentence of 46 months.

I. Sentencing Challenges

A. § 3C1.1

Appellant argues that the district court erred in assessing a

two-level enha n cement for obstruction of justice pursuant to

U.S.S.G. § 3C1.1 based on the finding that she had suborn ed the

perjury of Cherie Courtney, the sole defense witness. Courtney was

a former employee of AIS. The crux of Courtney’s testimony was that

Appellant had physically retrieved the check from AIS instead of

causing it to be mailed as charged in count two of the indictment.

Appell ant asserts that there is insufficient evidence to

support the findings. This Court reviews a finding of obstruction

of justice for clear error. United States v. Holmes, 406 F.3d 337,

363 (5th Cir. 2005). This Court has explained that to be adequate

a district court's f indings "must identify false testimony

concerning a material matter, indicate th e witness testified with

willful intent to provide false testimony, and indicate the

defendant procured the witness's testi mony.” U nited States v.

Johnson, 352 F.3d 146, 148 (5th Cir. 2003). 1Thus, the district court made the requisite finding that the

testimony was false. Further, it appears undisputed that the

testimony was material. In any event, the district court found that

Courtney’s false tes timony resulted in Appellant’s acquittal of

count two, which constitutes a finding of materiality. Also, as

Appellant admits, the di strict court found that she procured

Courtney’s false testimony. Accordingly, the district court’s

findings encompass all the factual predicates for a finding of

suborning perjury and thus are adequate to support the enhancement.

4 Appellant asserts that the evidence is insufficient to support

the findings, claiming that the “record is unclear . . . whether

such testimon y was perjurious as opposed to simply inaccurate.”

Contrary to Appellant’s assertion, there is evidence that Courtney

admitted to Agent McDowell that it was an intentionally untruthful

statement that Appellant pic ked up the check. C ourtney explained

to Agent McDowell that she lied in her t estimony about Appellant

picking up the check because she believed that Appellant was

i nnocent and that both Appellant and her attorney had insinu ated

that such testimony was necessary to exonerate Appellant. Thus, the

district court had sufficien t evidence to conclude that the

testimony was perjured.

Appellant further asserts that there was no evidence that she

played any role in suborning the perjury. She contends that

“nowhere in the testimony of McDowell or in his reports is there any

indication that Kilgarlin attempted to influence Courtney in any way

to testify falsely.” However, at Appellant’s bond hearing, Agent

McDowell testified that Cour tney admitted to him that Appellant

contacted her the week prior to trial and “insin uated that the5

evidence that they needed to present to the court was that she

actually came and picked up the check, versus the check being sent

through the mail.” The evidence is sufficient to support the

finding that Appellant procured Courtney’s testimony.

Finally, in a foot note, Appellant argues that because the

perjured testimony involved only a mail fraud count (of which she

wa s acquitted), the district court erred in applying this

enhancement to the sentence for the obstruction of justice

conviction. Prior to the time of Appellant’s offense, the

Sentencing Comm ission amended § 3C1.1 by clarifying that the

“obstruction must relate either t o the defendant’s offense of

conviction (including any relevant conduct) or to a closely related

ca se.” U.S.S.G. Manual, Appendix C, amend. 581 (Nov. 1, 1998).

Here, the § 3C 1.1 enhancement based upon Appellant’s suborning

Courtney’s testimony was related to her obstruction of justice

conviction. Appellant is not entitled to relief with respect to

this issue.

B. § 2J1.2

Appellant was convicted of obstruction of j ustice for

fabricating documents she provided to th e grand jury in violation

of 18 U.S.C. § 1503. She contends that the three-level enhancement

for substantial i nterference with the administration of justice

pursuant to § 2J1.2 for fabricating documents constitutes double

counting. However, double counting is not prohibited unless the6

guideline in question forbids it. S ee United States v. Box, 50 F.3d

345, 359 (5th Cir. 1995). As explained by the Sixth Circuit,

§ 2J1.2 simply “increases the punishment for a defendant who

obstructs justice when such obstruction has negative consequences.”

United States v. Tackett, 193 F.3d 880, 886 n.3 (6th Cir. 1999).

Here, the government c o ntends the substantial expenditure of

gov e rnment and court resources constituted the negative

consequences. See § 2J1.2, comment. (n.1).

The crux of the instant issue is whether the district court

clearly erred in finding that subst antial r esources were expended

because of App e llant’s falsification of documents. In support of

its contention that the expenditure was substantial, the government

asserts that the fabricated documents appeared legitimate on their

face and that the agents had to learn Enviro-Comp Laboratories’s

chain of custody procedures for the specimens as well as the

operating procedures of lab and computer equipment, including the

Hitachi 717. The PSR provided that:

Ms. Kilgarlin falsified n u merous documents that she

provided to a federal grand jury in an effort to conceal

her actions. The defendant attempted to obstruct the

grand jury’s investigation of this offense by providing

the grand jury with a variety of documents which reflect

that the drug tests were actu ally performed. Numerous

docu m ents were provided which were printed on the

standard company forms and ap pear on their face to be

legitimate. I ndeed, the false nature of these documents

becomes apparent only after analyzing the documents and

com paring the story told through the documents with

other evidence, such as standard co mpany procedure and

witness testimony.7

(emphasis added). As previously noted, the district court adopted

the findings in the PSR.

At sentencing, Appellant objected to this enhancement, arguing

that there had not been a substantial expenditure of time and

resources by the government. In response, the district court found

as follows:

I think the government’s position is well-taken

that this is not your garden var iety obstruction, even

though the su bstantial interference—even though Ms.

Kilgarlin has already been convicted of obstruction.

This was a fairly complicated case in terms of the

documents that were presented to and otherwise falsified

and presented to the grand jury. And again it was done

by Ms. Kilgarlin.

And as Ms. Jones [the prosecutor] properly noted,

because of the nature of the case this was not something

that y ou could just pick up a document and look at it

and say, oh, this is false. It required people who knew

this business and the procedures employed in this

business and the documents used in this business to look

at the stuff and say, well, this is not what it purports

to be.

So the government did have to go through some

additional investigation, and trouble, expense, use of

time and resources in order to unravel the webs created

by Ms. Kilgarlin.

Although the court did not use the precise phrase “substantial

expenditure,” the above findings, which were in response to defense

counsel’s argument that the expenditure of resources was not

substantial, clearly indicate that the court did find a substantial

expenditure. A review of the record indicates that the agents of

the Environmental Protection Agenc y did have to conduct further

investigation regarding the chain of custody procedures and the2 In a footnote, Appellant cites authority from other

circuits in dicating that the “substantial interference” must be

with respect to an offense other than the obstruction of justice

conviction. We note that the cases cited involve substantial

interference in the context of § 2J1.3 (an enhancement for

perjury), not the instant guideline, § 2J1.2 ( obstruction of

justice). Although the instant question has been raised before

this Court in the context of § 2J1.2, ultimately we did not find it

necessary to decide the issue. U nited States v. Harrington, 82

F.3d 83, 87 n.1 (5th Cir. 1996). Nonetheless, we noted that we had

rejected that argument in the context of § 3C1.1 and such an

argument in the context of § 2J1.2 was “less persuasive than [the]

r ejected argument.” I d. B ut cf. Norris, 217 F. 3d at 273

8 computer and lab equipment to prove the documents had been

fabricated. Likewise, the trial was lengthened by demonstrating the

fruits of this additional investigation to the jury. We note that,

in the context of addressing a similar gui deline enhancement for

perjury, § 2J1.3, this Court has concluded that “where a defendant

actively conceals important evidence of which [he or] she is the

only source, a court may infer that the defendant’s interference

with the administration of justice was substantial.” U nited States

v. No rris, 217 F.3d 262, 274 (5th Cir. 2000) (internal quotation

marks and citation omitted) (brackets in opinion). In the instant

case, to the extent that Appellant was the on ly source of the

information she was concealing, we may infer that the interference

with the administration of justice was substanti al. Under these

circumstances, we are not persuaded that the district court clearly

erred in finding that Appellant’s fa brication of documents caused

unnecessary expenditure of substantial government and court

resources. 2(concluding that the “expenses incurred with the investigation and

prosecution of [the] instant perjury offenses may not form the sole

basis for applying section 2J1.3(b)(2)’s enhancement”). Moreover,

we opined that “[a]s a practical matter, it would seem that in most

cases the investigation of the underlying offense and of the

obstruction charge would be almost inextricably related.” Id. at

86-87. In the case at bar, the resources spent investigating the

fabricate d documents were inextricably related to proving the

offense of the scheme of mail fraud, which was count one of the

indictment. Thus, even assuming that § 2J1.2 requires the

substantial interference to be with respect to an offense other

than the obstruction of justice conviction, such a require ment

would be satisfied in this case.

3 It should be noted that this enhancement was deleted by

consolidation with § 2B1.1 effective November 1, 2001. U.S.S.G.

Manual app. C 617 (2003). The PSR indicates that the 2000 edition

of the Guidelines Manual was used because it was “less onerous than

the November 1, 2003 Guidelines Manual,” which was in effect at the

time of sentencing. S ee also United States v. Kimler, 167 F.3d

889, 893 (5th Cir. 1999) (explaining that a district court must use

the sentencing guid elines in effect at the time of sentencing

unless it would violate the Ex Post Facto Clause).

9 C. § 2F1.1(b)(2)(A)

Appellant argues that the district court erred in assessing a

two-le v el enhancement for more than minimal planning pursuant to

U.S.S.G. § 2F1.1(b)(2)(A). 3 The government does not respond to this

claim on the merits; instead, it replies that any error is harmless.

Thus, we will assume w ithout deciding that this enhancement was

error.

This Court has recognized “that the finding of an incorrect

application of the Guidelines shifts the burden to the proponent of

the s entence—whether that be the defendant or the government—to

persuade the court of appeals that the district court would have

imposed the same sentence absen t the erroneous factor.” U nited10

States v. Tel lo, 9 F.3d 1119, 1129 (5th Cir. 1993) (citation,

brackets, and internal quotation marks omitted). As the government

asserts, the PSR grouped the convictions for mail fraud and

obstructi on of justice pursuant to U.S.S.G. § 3D1.2(c).

Accordingly, the PSR determined the offense level based on the

obstruction of justice conviction because it was “the more serious

offense.” In other words, the obstruction of justice offense level

was higher than the mail fraud offense level. Thus, even assuming

the two-point enhancement of the mail fraud offense constituted

error , it did not affect Appellant’s sentencing guideline range

because it was determined without refer ence to the mail fraud

offense. The sentencing range remains the same with or without the

enhancement.

After reviewing the record, we are convinced that the error was

harmless. Immediately prior to pronouncing sentence, the district

court addressed Appellant as follows:

This is your second felony conviction. The conduct

committed in this offense is, for all practical

purposes, the same criminal conduct that you engaged in

in your first convict i on, fraudulent conduct and

obstructive co nduct, seeking to cover up and allow you

to escape punishment for your crimes. I see no

indication in anything that I have looked at that you

have any de gree of remorse for anything that you have

d one. It appears to the court that you are a

manipulativ e person who is able to, at least in these

last two cases, you have been able to get other persons

to commit serious criminal offenses to assist you to

escape responsibility for what you have done.

Information was provided by Ms. Fournet [defense

counsel] in the form of a sentencing memorandum which11

also contained references to a substance abuse problem.

There were tests and evaluations by Dr. Farina, if I

recall correctly. I looked at that. And I couldn’t

help but note that this information is completely at

odds with the prior evaluations in the first presentence

report. It’s completely a t odds with the information

that you provided to the probation officer in this

report regarding the existence of any substance abuse

probl e m. Again, the court views that as manipulative

conduct.

. . . For all of these reasons, t he court is

strongly tempted to impose what, if the guidelines were

mandatory, wha t would be an upward departure. Stated

quite frankly, Ms. Kilgarlin, I’m strongly tempted, and

I think the circumst a nces warrant the imposition of a

maximum sentence, because prior ha lf steps have not

worked.

You were convicted of this same co nduct before

Judge Parker. And Judge Parker gave you the benefit of

a break; gave you the bene fit of probation. You took

advantage of that by committing this offens e while you

were on release for the offense that Judge Parker

sentenced you for.

. . . .

I am not going to impose a maximum sentence, but I

am going to sentence at what would have be en the upper

end of the guidelines range had they been ma n datory in

this case. I have considered the sentencing guidelines.

I have considered the sentencing factors . . . . I

have considered the circumstances of this offense. And

for the reasons I have just indicated, the court feels

that the following sentence is appropriate.

(emphasis added).

The district court’s comments just prior to imposing the

sentence demonstrate that the court would ha ve imposed the same

sentence absent the erroneous enhancement. T ello, 9 F.3d at 1129.

Any error in this enhancement did not affe ct the sentence and was4 Appellant recognizes that this Court has concluded that

Booker did not alter the standard of review to determine whether

the district court properly interpreted and applied the guidelines.

See United States v. Creech, 408 F.3d 264, 270 n.2 (5th Cir. 2005).

She apparently raises it to preserve it for further review.

5 As previously discussed, although there may have been error

in calculating the mail fraud offense level, that did not change

the ultimate sentencing range for the grouping of the offenses.

12 harmless.

D. Booker Reasonableness

Appellant contends that regardless of whether her 46-month

sentence was calculated appropriately under the guidelines, it is

unreasonable in light of the factors enumerated in section 3553(a).

See United States v. Booker

, 125 S. Ct. 738 , 765 (2005). 4 She

argues that there are numerous reasons why the c ourt should have

exercised its discretion to impose a sentence below the calculated

range. She asserts, among other things, that the billing involved

in the mail fraud wa s only $17, that the company suffered no loss

from her conduct, that her son was two years old, and that she

suffered from physical and emotional problems.

In this case, the district court sentenced Appellant within the

correct guidelines range. 5 “Given the deference due the sentencing

judge's discretion under the [ Boo ker ] regime, it will be rare for

a reviewing court to say such a sentence is ‘unreasonable.’” U nited

States v. Mares

, 402 F.3d 511, 519 (5th Cir.), c ert. denied

, 126

S.Ct. 43 (2005). Appellant has not shown that her circumstances are6 Appellant also argues that B ooker afforded the sentencing

court discretion to depart downward from t he guidelines. In a

footnote, Appella nt mentions that she requested in the district

court a downward departure under §5K2.0(3), which involves

departures based on circumstances present to a degree not

adequately taken into consideration in the guidelines. To the

extent that Appellant is chal lenging the district court ’ s refusal

to downwardly depart, this Court does not have jurisdiction to

review a district court’s re fusal to grant a downward departure

from the guidelines unless the refusal was based on the sentencing

court’s erroneous belief t hat it lacked the authority to depart.

United States v. Buck, 324 F.3d 786, 797 (5th Cir. 2003).

Appellant makes no such allegation. B ooker does not affect this

holding. See e.g., United States v. Puckett, 422 F.3d 340, 345

(6th Cir. 2005); United States v. Frokjer, 415 F.3d 865, 874-75

(8th Cir. 2005).

13 “rare.” Moreover, in view of Appellant’s subornation of perjury

during the instant trial and her prior convictions for making a

material false statement and witness tampering, she has failed to

demonstrate that her post-Booker guidelines s e ntence was

unreasonable. 6

II. Constitutionality of Mail Fraud Statute as Applied

Appellant admits that she raises for the first time on appeal

the claim that the mail fraud statute, 18 U.S.C. §§ 1341 and 1346,

was unconstitutional as applied to an independent contractor and

that therefore it is reviewed for plain error. S ee United States

v. Olano

, 507 U .S. 725, 113 S.Ct. 1770 (1993). We have found no

authority holding that the mail fraud statute is unconstitutional

as applied to an independent contracto r. To the contrary, the

Eighth Circuit h as expressly rejected the argument that the mail7 Unlike the case at bar, this Court was not faced with an

independent contractor scenario; instead, the argument urged by the

appellant in Brumley was that neither the plain language of § 1346

nor its legislative history expanded the types of victims protected

by the statute to include a state employer. 116 F.3d at 730.

Ultimately, this Court rejected Brumley’s claims and fo und the

statute constitutional. Id.

8 Appellant also raises for the first time on appeal the

claim that her cond uct lacked sufficient nexus with interstate

commerce in violation of the Commerce Clause. Assuming that this

issue has been adequately raised in the original brief, Appellant

has not cited a case in which application of the mail fraud statute

was unconstitutional under the Commerce Clause. Moreover, this

Court expressly rejected the argument that the Commerce Clause does

n ot support § 1346. B rumley, 116 F.3d at 730. Appellant cannot

show error, much less plain error.

14 fra ud statute requires the breach of a fiduciary duty. United

States v. Ervasti, 2 01 F.3d 1029, 1036 (8th Cir. 2000). Further,

Appellant’s reliance on United States v. Brumley, 116 F.3d 728 (5th

Cir. 1997), is misplaced. 7 Accordingly, even assuming that the

statute was unconstitutional as applied to Appellant, which we

doubt, such error would not be plain. Having failed to demonstrate

plain error, Appellant is not entitled to relief. 8

The district court’s judgment is AFFIRMED.